First “heartbeat” lawsuit filed

Didn’t take long.

A San Antonio physician is facing a lawsuit after he admitted performing an abortion considered illegal under Texas’ new law.

Why it matters: The civil suit, filed by a convicted felon in Arkansas, against Alan Braid is the first such suit under the law that allows private citizens to sue anyone who helps a pregnant person obtain an abortion after six weeks.

What he’s saying: Braid said he acted “because she has a fundamental right to receive this care.”

  • “I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” he wrote in a column in the Washington Post.

Driving the news: Oscar Stilley, a former lawyer from Arkansas who was convicted of tax fraud in 2010, said he does not personally oppose abortion but decided to file the suit to test the Texas law’s constitutionality.

  • “If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage?” Stilley after filing the complaint in state court in Bexar County, Texas, according to the Post.

See here for the background, and here for a copy of the lawsuit. Oscar Stilley is certainly the plaintiff the forced birth crowd deserves. If I’m reading his comment correctly – the WaPo article is paywalled, so I’m somewhat limited in what I can see – it sounds like he wants to give SB8 opponents a chance to get it thrown out. There’s nothing funny about any of this, but for the first lawsuit under this atrocity to be an utter farce would be entirely fitting.

One other angle, which I noticed in the stamp of the Bexar County District Clerk. This lawsuit was assigned to the 438th Civil Court in Bexar County, whose judge is a Democrat. Judges are compelled to follow the law, of course, but to whatever extent she has discretion, I would think she might not be terribly inclined to give any such plaintiff the benefit of the doubt. Do keep in mind, this law enables the bounty hunters to file their garbage lawsuits in any state court in Texas. For sure, the reason for that was to allow all of the greedy little fortune seekers the opportunity to file in Republican counties, where they can expect a higher level of service. I don’t think any of this was according to the plan these jackals had in mind, but it’s still chaos and attention for them, and I’m sure they’ll take it. Best wishes, and I hope a good supply of Advil and Maalox, to the judge. CBS News and NBC News have more.

UPDATE: Per the Trib, there are actually now two lawsuits against Dr. Braid.

At least two lawsuits have been filed against Braid, both by disbarred attorneys. One was filed by Illinois resident Felipe N. Gomez, who identified himself as a “Pro Choice Plaintiff” and aligns himself with Braid in the lawsuit, KSAT reported. Gomez does not ask for monetary damages in the suit, but asks “the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade,” according to the TV station.

There’s more in there about Oscar Stilley, whose motivations are all over the place. Gomez’s lawsuit was also filed in Bexar County, but the copy that was included in that KSAT story did not indicate which court. The lawsuit is also one page long and it’s not clear to me it meets the legal definition of a “lawsuit”. I guess the lucky judge will get to make that call. As they say, play stupid games, win stupid prizes.

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7 Responses to First “heartbeat” lawsuit filed

  1. David Fagan says:

    23 days and counting………

  2. mollusk says:

    Bexar and Travis Counties both have rotating dockets, where the initial court assignment at filing doesn’t necessarily mean that’s the court that will be hearing the case. Both counties also have a provision for attaching individual cases to a particular court when a cases’ complexity or other factors warrant; IDK if that’s happened here yet.

  3. Neil Cohen says:

    The Texas law is clearly unconstitutional as contrary to Roe v. Wade, which is still the law. The suit will be quickly thrown out. The only interesting question is the quality of the plaintiffs’ constitutional arguments. Any law imposing a heavy burden on abortions before viability is unconstitutional. A complete ban after six weeks is a very very heavy burden. The uncertainty about the Texas law was not about its substance — the ban on abortions — but the proper procedure to fight it. Plaintiffs trying for an injunction had a problem deciding who to sue. That was the excuse the rabid right-wingers in the Supreme Court gave for not issuing an injunction. But, not even they said they Roe v Wade was no longer good. Baird, by daring people to sue him, got a test of the law without the procedural problems. [BUT, the Court has agreed to hear a MS. case this fall that is directly contrary to Roe. So, it may not be around after this Supreme Court term.]

  4. Neil Cohen says:

    follow-up to previous comment: Bounty hunters under this law may be in for an unpleasant surprise. When a court rules it unconstitutional, it may rule that ALL of it is unconstitutional, including the provisions that defendant reimburse plaintiff for legal expenses and that defendant cannot collect expenses from plaintiff. The rule is whether the other provisions are an integral part of the act which had an unconstitutional component. This reimbursement provisions are clearly integral. Just like the main provision, which imposes a $10,000 penalty, these impose costs on an abortion provider. Also, these may well amount to more well more than the penalty, especially if the case is appealed (to the Texas and US Supreme Courts, e.g.).

  5. Kibitzer Curiae says:

    A few droppings to add to Neil’s observations:

    1. One of the two lawsuits against the self-confessed abortion provider was filed in forma pauperis (IFP), the other one would have cost about $300 in filing fees, plus service of process, if necessary. The plaintiff always pays up front (unless IFP-excused), and whether they get reimbursed (if they win) can’t be taken for granted. So, there is a “paywall” at the in-hopper.

    2. There may not be a case/controversy if the pro-choice plaintiff roots for the Doc, which appears to be so in at least one of them. This would be the non-adversarial scenario in what is supposed to be an adversarial system. With hood and wink, of course, all could collaborate (conspire?) in procuring a judgment that’s not denominated agreed to appeal, so as to make desired case law higher up. But what if the court of appeals doesn’t go along with the friendly-lawsuit ruse? Lack of jurisdiction can be raised at any time.

    3. Regarding costs, the general rule is that the loser pays, just taxed by default. Need not even be awarded by judgment. But costs should be a big deal here what with the doctor already having admitted the violation. Who needs depositions even? Perhaps not even a trial on the merits (with need for reporter’s record, which could be pricey in a med-mal case).

    4. The attorney’s fees could be a big deal here, but these first too SB8 cases are pro se cases, so how are they incurring any as long as they stay DIY? Also, even if the out-of-state lawyer weren’t disbarred, and satisfied the requirements for PHV, he would still have an uphill struggle under Kay v. Ehrler.

    Granted, state court wouldn’t have to follow federal on this (and there is no atty caselaw on SB 8 yet, so not foreclosed), but there is already state court precedent, too, for the proposition that you can’t hire yourself and claim to not be pro se for purposes of running up the Lodestar amount and shifting it to the opponent.

    5. Regarding severability, the bill author was careful to build that into the structure of SB8 so as to make sure as much will survive as possible. Not to mention that there is a case pending in the SCOTX on severability based on the Code Construction Act, rather than expressis verbis in the statute/code text. We’ll see how that comes out. They’ll probably decide that one before they get into an SB8 suit proper.

  6. Bill Daniels says:


    As I understand it, both plaintiffs are actually on the pro-abortion side, so they’re probably not going to bring their A-game and actually attempt to win. In other words, I suspect their plans are to throw their respective cases.

    As to the abortion doctor, he admitted to a crime, but, was he even telling the truth? I could come out and say, “Yes, I kidnapped the Lindbergh baby!” That doesn’t make it true. And even if the doc did suck a kid out of some woman, without the particulars, the woman’s name, etc., I don’t see how there is a case.

    I could announce to the world, “Hell yes, I killed 3 people,” but that doesn’t equal proof of any crimes. To prosecute me, you’ve at least got to name the people I supposedly killed, and having a few bodies would be even better. As far as I have heard, the doc hasn’t named any woman as his co-conspirator, and there’s no dismembered body of the baby in a jar as proof, either.

    These cases were designed up front to fail. I mean, pretty smart move for the pro-abortion folks, actually.

  7. Pingback: How the “heartbeat” lawsuits may proceed – Off the Kuff

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